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United States v. King

United States District Court, D. New Mexico

March 31, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DAVID LOUIS KING, Defendant/Movant. Cr. No. 02-2092 MV

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HON. MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendant/Movant David Louis King's (“Movant”) Emergency Motion to Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) (“Section 2255 Motion”), filed May 26, 2016. On December 1, 2016 and February 17, 2017, United States Magistrate Judge Kirtan Khalsa filed Proposed Findings and Recommended Disposition (“PFRD”) and Supplemental Proposed Findings and Recommended Disposition (“Supplemental PFRD”), respectively, in which she recommended that the Court grant Movant's Section 2255 Motion, vacate his sentence, and resentence him without enhancement under the ACCA at the Court's earliest opportunity. (Docs. 12, 15.) The Government objected to the PFRD and Supplemental PFRD on December 15, 2016, February 6, 2017, and March 3, 2017. (Docs. 13, 14, 17.) Movant's Section 2255 Motion and the Government's objections are now before the Court.

         I. Factual Background and Procedural History

         On November 21, 2002, the Government charged Movant by indictment with two counts of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (CR Doc. 1.[1]) The Court appointed attorney Kenneth Gleria to represent Movant, who pled not guilty to the charges against him on December 12, 2002. (CR Docs. 5, 7.) On January 30, 2003, the Court released Movant from custody pending trial. (CR Docs. 16, 17.)

         Movant pled guilty to Count I of the indictment pursuant to a plea agreement on July 15, 2003. (CR Doc. 31.) However, on August 26, 2003, the Government filed a notice that it intended to seek a minimum sentence of fifteen years' imprisonment pursuant to the ACCA, rather than a maximum sentence of ten years' imprisonment pursuant to 18 U.S.C. § 924(a)(2) as stated in the parties' plea agreement. (CR Doc. 32.) The Government identified three predicate convictions to support the enhanced sentence: a 1986 armed robbery conviction, a 1995 commercial burglary conviction, and a 1995 residential burglary conviction, all under New Mexico law. (Id. at 2; Doc. 9-1 at 10 ¶ 26.) In light of this new information, the Court permitted Movant to withdraw his guilty plea on September 25, 2003. (CR Doc. 35.) On October 8, 2003, the Government filed a superseding indictment to include charges that Movant's sentence should be enhanced under the ACCA. (CR Doc. 37.)

         Movant entered into a new plea agreement, and pled guilty to Count II of the superseding indictment, on February 18, 2004. (CR Docs. 56, 57.) In the new plea agreement, Movant acknowledged that he faced a minimum sentence of fifteen years' imprisonment under the ACCA. (CR Doc. 56 at 2.) However, on April 21, 2004, Movant filed objections to the Presentence Investigation Report, in which he argued that the Court should not enhance his sentence because his prior conviction for commercial burglary was not for a violent felony under the ACCA. (CR Doc. 61.) Rejecting this argument, the Court sentenced Movant to fifteen years' imprisonment at a hearing on May 26, 2004. (CR Docs. 64, 83.) The Court entered a judgment of conviction against Movant on the same date, [2] and subsequently dismissed the original indictment and Count I of the superseding indictment. (CR Docs. 65, 67.) On appeal, the Tenth Circuit affirmed the Court's use of Movant's prior commercial burglary conviction to enhance his sentence. (CR Doc. 73.)

         Movant has been in federal custody since July of 2004. (Doc. 1 at 3.) He filed the Section 2255 Motion presently before the Court on May 26, 2016, less than one year after the United States Supreme Court struck down a portion of the ACCA in Johnson v. United States, - U.S. -, 135 S.Ct. 2551 (2015).[3] (Doc. 1.) The Government responded in opposition to the motion on August 8, 2016, and Movant filed a reply in support of it on August 30, 2016. (Docs. 8, 10.) In his motion, Movant asks the Court to reduce his sentence from fifteen years' to no more than ten years' imprisonment, which was the maximum sentence he faced without the ACCA enhancement, and order his immediate release from federal custody because he has already been imprisoned for more than ten years. (Doc. 1 at 1.) In support of this request, Movant argues that the enhancement of his sentence is no longer proper, because: (1) the Court necessarily relied on the ACCA's “residual clause” to find that his prior armed robbery conviction was for a violent felony under the Act; and, (2) the Samuel Johnson decision struck down the residual clause as unconstitutionally vague. (Id. at 4-5; Doc. 10 at 1-3.)

         In its response in opposition to Movant's motion, the Government acknowledges that the Court likely relied on the ACCA's residual clause to find that Movant's prior armed robbery conviction was for a violent felony, and that this clause is no longer valid. (Doc. 8 at 1-2.) However, the Government argues that the enhancement of Movant's sentence nevertheless remains proper because New Mexico armed robbery still qualifies as a violent felony under the ACCA's “elements clause, ” which Samuel Johnson left intact. (Id. at 2-3.)

         In her December 1, 2016 PFRD, Magistrate Judge Khalsa recommended that the Court grant Movant's Section 2255 Motion, and the Government filed Objections to Magistrate Judge's Proposed Findings and Recommended [Disposition] (“Objections”) on December 15, 2016. (Docs. 12, 13.) Then, on January 4, 2017, the Tenth Circuit issued United States v. Harris, 844 F.3d 1260 (10th Cir. 2017), which caused the Government to modify its position in a Supplement to United States' Objections to Magistrate Judge's Proposed Findings and Recommended [Disposition] (“Supplement”), filed February 6, 2017. (Doc. 14.) Also after entry of Magistrate Judge Khalsa's PFRD, two district judges and three other magistrate judges in this District issued decisions or recommendations contrary to those in the PFRD. (See Doc. 15 at 10-11.) Thus, on February 17, 2017, Magistrate Judge Khalsa filed her Supplemental PFRD, in which she reexamined her original recommendation in light of Harris, 844 F.3d at 1260, the Government's Objections and Supplement, and the recent decisions of other judges in this District. (Doc. 15.) However, the Magistrate Judge ultimately declined to alter her original recommendation. (Id. at 16.) Movant responded to the Government's Supplement on February 25, 2017, and the Government filed Objections to Magistrate Judge's Supplemental Proposed Findings and Recommended [Disposition] (“Objections to Supplemental PFRD”) on March 3, 2017. (Docs. 16, 17.)

         The Court has considered Movant's Motion, the Magistrate Judge's PFRD and Supplemental PFRD, and the Government's Objections, Supplement, and Objections to Supplemental PFRD, and has conducted a de novo review of the record in this case and the underlying criminal case. Based on this review, and for the reasons set forth below, the Court finds that the Government's Objections, Supplement, and Objections to Supplemental PFRD are unfounded, the Magistrate Judge's PFRD and Supplemental PFRD should be adopted, and Movant's Section 2255 Motion should be granted.

         II. Analysis

         District courts may refer dispositive motions to a magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b)(1). “Within 14 days after being served with a copy of the [magistrate judge's] recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1). When resolving objections to a magistrate judge's proposal,

[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1).

         “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). Further, “[i]ssues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see also United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.”).

         The ACCA provides that a person who violates 18 U.S.C. § 922(g) and has three prior convictions for a “violent felony” or “serious drug offense” is subject to a minimum term of imprisonment of fifteen years. 18 U.S.C. § 924(e)(1). Under the ACCA, the term “violent felony” means

any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). Subpart (i) of this definition is known as the “elements clause” or “force clause”; the non-italicized portion of subpart (ii) is known as the “enumerated offenses clause”; and, the italicized portion of subpart (ii) is known as the “residual clause.” Samuel Johnson, 135 S.Ct. at 2556; Harris, 844 F.3d at 1263; United States v. Fritts, 841 F.3d 937, 939 (11th Cir. 2016); United States v. Gardner, 823 F.3d 793, 801-02 (4th Cir. 2016); United States v. Priddy, 808 F.3d 676, 683 (6th Cir. 2015). In Samuel Johnson, the Supreme Court held that the ACCA's residual clause is unconstitutionally vague, but left its enumerated offenses and elements clauses intact.[4] 135 S.Ct. at 2557, 2563.

         To determine whether an offense is a violent felony under the ACCA, courts must generally apply the “categorical approach, ” which requires that they consider only the offense's statutory elements, and not the actual facts underlying the defendant's prior conviction. Harris, 844 F.3d at 1263; United States v. Duncan, 833 F.3d 751, 754 (7th Cir. 2016); Gardner, 823 F.3d at 802; United States v. Smith, 652 F.3d 1244, 1246 (10th Cir. 2011). Courts must presume that a prior conviction “rested upon nothing more than the least of the acts criminalized” by the state statute. Moncrieffe v. Holder, - U.S. -, 133 S.Ct. 1678, 1684 (2013) (internal punctuation marks omitted). However, “in construing the minimum culpable conduct, such conduct includes only that in which there is a realistic probability, not a theoretical possibility the state statute would apply.” Harris, 844 F.3d at 1264 (quoting Moncrieffe, 133 S.Ct. at 1685). In other words,

[t]o satisfy this categorical approach, it is not necessary that every conceivable factual offense covered by a statute fall within the ACCA. Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, qualifies under the ACCA as a violent felony.

Smith, 652 F.3d at 1246 (citation omitted). To identify the least culpable conduct a state statute criminalizes in the ordinary case, courts look to “[d]ecisions from the state supreme court . . . supplemented by decisions from the intermediate-appellate courts.” Harris, 844 F.3d at 1264.

         When a statute includes alternative elements that create distinct versions of a crime, courts employ the “modified categorical approach.” Gardner, 823 F.3d at 802; United States v. Hood, 774 F.3d 638, 645 (10th Cir. 2014); see Mathis v. United States, - U.S. -, 136 S.Ct. 2243, 2249 (2016) (“[T]his Court approved the ‘modified categorical approach' for use with statutes having multiple alternative elements.”). When using the modified categorical approach, “a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Mathis, 136 S.Ct. at 2449; Hood, 774 F.3d at 645. The court then compares the elements of that crime, as the categorical approach commands, with the elements of the relevant generic offense. Mathis, 136 S.Ct. at 2249. However, the modified categorical approach does not apply to statutes “that enumerate[] various factual means of committing a single element.” Id. at 2249, 2253-54.

Here, Movant's statute of conviction provides that
[r]obbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.
Whoever commits robbery is guilty of a third degree felony.
Whoever commits robbery while armed with a deadly weapon is, for the first offense, guilty of a second degree felony and, for second and subsequent offenses, is guilty of a first degree felony.

N.M. Stat. Ann. § 30-16-2.

This statutory language shows that armed robbery is not a distinct offense from robbery; the offense is robbery whether or not armed, and whether or not one is an accessory. ‘Armed robbery' is a way to commit ‘robbery' and, if done in that way, the penalty is greater but the basic offense remains robbery.

New Mexico v. Roque, 1977-NMCA-94, ¶ 8, 91 N.M. 7, 569 P.2d 417. Thus, as stated in the Magistrate Judge's PFRD, to determine whether Movant's armed robbery conviction is a violent felony under the ACCA, the Court must analyze the elements of robbery, plus the additional element of commission of the offense “while armed with a deadly weapon.”[5] (Doc. 12 at 7); N.M. Stat. Ann. § 30-16-2.

         Robbery and armed robbery are not included in the ACCA's enumerated offenses clause, and, as noted above, the Act's residual clause is no longer valid. 18 U.S.C. § 924(e)(2)(B)(ii); Samuel Johnson, 135 S.Ct. at 2557, 2563. Thus, to constitute a violent felony under the ACCA, New Mexico armed robbery must satisfy the elements clause; in other words, it must categorically have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). As Magistrate Judge Khalsa observed, at first glance, New Mexico robbery, simple or armed, would seem to satisfy this requirement easily, because it consists of theft from the person or immediate control of another “by use or threatened use of force or violence.”[6] (Doc. 12 at 7); N.M. Stat. Ann. § 30-16-2. “The gist of the offense of robbery is the use of force or intimidation.” New Mexico v. Bernal, 2006-NMSC-50, ¶ 28, 140 N.M. 644, 146 P.3d 289 (emphasis added) (citation omitted). In short, the statute's plain language suggests that New Mexico robbery, and thus also the aggravated offense of armed robbery, fall squarely within the scope of the ACCA's elements clause.

         However, as the Magistrate Judge noted, the required analysis is “not so straightforward in the sometimes counterintuitive legal landscape recent federal jurisprudence has created.” (Doc. 12 at 8.) The meaning of the term “physical force” in the ACCA's elements clause is a question of federal law, and the United States Supreme Court has held that “physical force” means “violent force-that is, force capable of causing physical pain or injury to another person.” Curtis Johnson, 559 U.S. at 138, 140 (emphasis in original); Hood, 774 F.3d at 645; United States v. Ramon Silva, 608 F.3d 663, 669 (10th Cir. 2010). The Supreme Court therefore concluded that the force element of Florida battery, which can be satisfied by “the most nominal contact, such as a tap on the shoulder without consent, ” did not categorically rise to the level of physical force within the meaning of the ACCA. Curtis Johnson, 559 U.S. at 138-40. Accordingly, ...


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